The conflict between legislature and judiciary over the status of fundamental rights during the Nehruvian era

Introduction

The Indian Constitution fully came into effect on 26 January, 1950. The very essence of the state and its capability as envisioned by the constitution was to protect an individual’s rights, liberty, and freedom. The idea of justice and freedom rested on political stability, survival of democracy and social revolution in economic and social life to enhance the state of the Indian masses. Granville Austin, an American historian has described this as the seamless web “in the strand of unity, democracy, and social revolution”.

Out of all the matters affecting the newly independent nation, commitment to a democratic State coupled with the objective of social revolution dominated the agenda and motive of the Constituent Assembly. Suhas Palshikar, an Indian academician, said that the beginning of the Indian State was marked with a special enthusiasm for a welfare state, seen in the light of the constitution as a document of social revolution and change.

With the changing requirements of the populace, the Constitution also requires amendments to accommodate and manage the strain between the political system and constitutional ideals. Article 368 of the Indian constitution talks about the amendment in the Indian Constitution in response to new challenges and it also takes into account the unanticipated and unforeseen circumstances which were not in consideration by the constitution makers.

The judiciary examines and decides the validity of any amendment introduced by the parliament by way of judicial review. Regardless, the extent of amending powers of the parliament became a source of endless conflict between the parliament and the Supreme Court in the early years of independence. The Basic Structure Doctrine[1] puts substantive as well as procedural limits on the amending process given in the constitution.

Political scenario during the Nehruvian era

After the Indian Constitution took effect, the argument on the constitutional amendments’ legitimacy was mostly centred on the “right to property” issue[2]. At the time of the inception of India’s Constitution, Part III of the Constitution contained the right to property as a fundamental right[3]. It guaranteed every citizen the right to acquire, hold and dispose of property and also provided protection against deprivation of property by a law of parliament by letting such deprivation only for a public purpose and that too upon the remuneration of fair compensation.

However, the Constituent Assembly had a polemic discussion over compensation. Nehru’s ambitious and enterprising plans for zamindari abolition were quickly thwarted by the zamindars, who questioned these zamindari abolition laws in court. Early court rulings of the courts held that the land reform laws violated the fundamental right to property guaranteed by the constitution.

It was in the case of Kameshwar Prasad Singh v. State of Bihar[4], that the Patna High Court ruled that the Bihar Land Reform Act, 1950 was unconstitutional. Due to this, the Parliament passed the Constitution (First Amendment[5]) Act of 1951, which amended the Constitution by way of the introduction of the Article 31-A saving clause. In court, the First Amendment was contested. The numerous disputes between the Parliament and the Judiciary started in this manner.

Till 1967, it has been observed that whenever the Supreme Court gave an interpretation of the constitution that the executive considered as against the goal of social justice and national progress, the Parliament used to pass amendments to overrule such judgments.

However, in the year 1967, in the case of I.C. Golaknath v. the State of Punjab[6], a stronger counterattack by the judiciary invalidated some of the amendments prospectively by testing them against the very fundamental rights that these amendments sought to amend. The executive and judiciary were clearly at loggerheads on a path to the collision. While referring to Article 13[7], the court held that while changes which had taken place already were fine, in the future, the parliament cannot amend the Fundamental Rights.

As per the judgment, the word “law” under Article 13 also includes constitutional amendments thus any constitutional amendment which violated fundamental rights was invalid. If fundamental rights were to be amended, then a new constitutional assembly will have to be convened for the same[8].

Measures taken by the legislature to counter the judiciary

Soon Indira Gandhi came to power and she nationalized banks and abolished privy purses. Nevertheless, the court struck down both. Then, Mrs. Gandhi reacted to this by preponing the elections in 1971, and after coming to power, the new government introduced the 24th Amendment[9] which brought changes to Article 13 and Article 368[10] to authorize parliament to freely amend Fundamental Rights and bring them within the amending power of the constitution. The 24th amendment also inserted clause (4) to Article 13 which stated that Article 13 won’t apply to constitutional amendments.

Under the original constitution, any amendment would come into force only if it is passed by two-thirds of the members of the House and if it receives the assent of the President who is also empowered to withhold assent. But the 24th amendment held that President was bound to give assent to the Bill and did not have any choice.

The Directive Principles as enumerated under Article 39(b) and (c) were given precedence over the Fundamental Rights[11] in Articles 14, 19 and 31 by the 25^th Amendment[12] which was also enacted at the same time. It states that any law passed to implement the directive principles outlined in Article 39(b) and (c) cannot be contested in court on the basis that it failed to give effect to such principles.

Judiciary on path correction

The Supreme Court engaged in some careful deliberation in the case of Kesavananda Bharti v. State of Kerala[13], which featured a property dispute. A special bench of the Supreme Court of India made up of 13 judges ruled by a 7–6 majority that Article 368 of the constitution did not provide the Parliament the authority to change the fundamental framework of the Constitution.

The Basic Structure of the Constitution, as it is now known, was thus proposed by the court. The court ruled that while any provision of the constitution may be changed by following the steps outlined in Article 368, no provision may be changed in a way that “alters the fundamental structure of the constitution”.

As a result, the court partially upheld the 24th amendment and stated that while the parliament is free to update the constitution as long as those changes do not violate Article 13 of the Constitution, it is not permitted to change the fundamental provisions of the document.

The judges gave an illustrative and not exhaustive list of what comprised the features of basic structure. Features like the supremacy of the constitution and the democratic and republican forms of governance were introduced by Justice Sikri[14]. Among other things, Justice Shelat and Grover added characteristics like national unity and sovereignty. Justices Hegde and Mukherjee noted that the Preamble had all of the essential elements that could be included in the basic structure.

The three organs of the state and parliamentary democracy were highlighted as constituting the basic structure by Justice Jaganmohan Reddy. In his decision, Justice Khanna tipped the scales by holding that judicial review constituted a fundamental component of the constitution, alongside democracy and secularism.

The court went several steps ahead in asserting its power of judicial review while overruling the I.C. Golaknath case. The Kesavananda Bharti case granted the court the authority to examine any amendment to determine whether it breached the fundamental framework. During the emergency, the 42nd Amendment[15] was passed, amending Articles 368 and 31(C) of the Constitution by totally prohibiting judicial scrutiny of constitutional changes and shielding all laws that attempted to implement any of the Directive Principles.

The Janata government’s 43rd and 44th Amendment[16] eliminated several provisions of the 42nd Amendment. As a result, the actual authority of the Supreme Court became unclear. In the case of Minerva Mills v. Union of India, 1980[17], the 42nd Amendment’s remaining portions were contested in the Supreme Court because the altered Article 31(C) subordinated the Directive Principles to the Fundamental Rights (especially Articles 14 and 19). It reiterated the same stance from 1973. The court held that any statute passed by the Parliament to implement any Directive Principles may be subject to judicial review.

Critical analysis

1. The plurality of opinions yielded in the Kesavananda judgment gave no clarity and so it is an uncertain authority to limit the amending powers of the parliament
2. Broad constitutional principles identified as basic features of the constitution are not amenable to judicial application. There is a lack of clarity about the nature and the character of the basic features of the constitution[18].
3. Granville Austin[19], an American historian of the Indian Constitution, argues that with the Basic Structure Doctrine, a balance has been reached between the responsibilities of parliament and the Supreme Court for protecting the seamless web of the Indian Constitution.
4. According to Raju Ramachandran, former Additional Solicitor General of India, the Basic Structure Doctrine is anti-democratic from the point of view following constitutional government because ultimately court’s view of its area of competence and effectiveness becomes the only check on the exercise of judicial power[20]. Ultimately the unelected judges have assumed the political power not given to the constitution.

Conclusion

By creating the Constitution neither too rigid nor too flexible, the Constitution makers gave Parliament the authority to alter it to meet the changing requirements and needs of the people.  By using the constituent power granted to it by Article 368 of the Indian Constitution, the Parliament can alter any section of the Constitution keeping in mind the basic structure of the Constitution is not altered.

Separation of powers is considered an essential component of the basic structure doctrine. In a vast and diverse nation like India, it becomes essential for the legislature as well as the judiciary to work in consonance with each other, ensuring the establishment of a welfare state, while keeping in mind the principles of justice, equity, and good conscience.

References:

[1] The Doctrine of Basic Structure, available at: https://articles.manupatra.com/article-details/The-Doctrine-of-Basic-Structure (Last Modified August 18,2021)

[2]What is Right to Property under Indian Constitution, available at: https://www.lawinsider.in/columns/what-is-right-to-property-under-indian-constitution (Last Modified July 4, 2021)

[3] Right to Property in India: everything important you should know about, available at: https://blog.ipleaders.in/right-to-property-in-india/

[4] Kameshwar Prasad Singh v. State of Bihar, AIR 1962, available at:  https://indiankanoon.org/doc/687159/

[5] Constitution (First Amendment) Act, 1951, available at: https://legislative.gov.in/constitution-first-amendment-act-1951

[6] I.C. Golaknath v. the State of Punjab, AIR 1967, available at: https://indiankanoon.org/doc/120358/

[7] Article 13 of Indian Constitution, available at:  https://indiankanoon.org/doc/134715/

[8] Land Acquisition Act: History & The Need to Strike Down Right to Property, available at: https://articles.manupatra.com/article-details/Land-Acquisition-Act-History-The-Need-to-Strike-Down-Right-to-Property

[9] Twenty fourth Amendment of Constitution of India, available at:  https://en.wikipedia.org/wiki/Twenty-fourth_Amendment_of_the_Constitution_of_India

[10] Amendment Of The Constitution And The Birth Of Basic Structure Doctrine, available at: https://articles.manupatra.com/article-details/AMENDMENT-OF-THE-CONSTITUTION-AND-THE-BIRTH-OF-BASIC-STRUCTURE-DOCTRINE (Last Modified January 24, 2022)

[11] BASIC STRUCTURE OF THE INDIAN CONSTITUTION: DOCTRINE OF CONSTITUTIONALLY CONTROLLED GOVERNANCE [From Kesavananda Bharati to I.R. Coelho], available at:  https://www.jstor.org/stable/43952120

[12] Twenty fifth Amendment of the Constitution of India, available at:  https://en.wikipedia.org/wiki/Twenty-fifth_Amendment_of_the_Constitution_of_India

[13] Kesavananda Bharti v. State of Kerala AIR 1973 SCC, available at: https://indiankanoon.org/doc/257876/

[14] The doctrine of Basic Structure in the Indian Constitution: A critique, available at:  http://www.scconline.com/DocumentLink/kb8z55ZE

[15] Constitution (Forty second Amendment) Act, 1976, available at: https://legislative.gov.in/constitution-forty-second-amendment-act-1976

[16] Constitution (Forty fourth Amendment) Act, 1978, available at:  https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978

[17] Minerva Mills v. Union of India, AIR 1980, available at: https://indiankanoon.org/doc/1939993/

[18] Basic Structure Doctrine: Some Reflections, available at:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=835165 (Last Modified 26 December, 2008)

[19]Granville Austin: Interpreter of Constitution, available at:  https://frontline.thehindu.com/other/obituary/interpreter-of-a-constitution/article23590279.ece

[20] Why should the Parliament codify the Basic Structure Doctrine, available at: https://www.juscorpus.com/why-should-the-parliament-codify-the-basic-structure-doctrine/

This article has been authored by Ishita Chandra, a student at Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.